Legal system reform: Kerala HC's '24x7 ON Court' an important early step

The judicial branch is fundamental to a good society. The promise of liberal democracy is predicated upon a well-functioning judiciary, to ensure that competition between parties is free of coercion. The promise of a market economy requires a well-functioning judiciary, to make contracting work, to limit state power, and to ensure that competition between firms is free of coercion. There is widespread discomfort with the Indian judiciary on the three dimensions of correctness, predictability, and speed.

Improving the legal system is a complex journey of political economy, consultation, and an operations research perspective applied to data. There are beneficiaries of the legacy system and they will look askance at some important reforms. Nobody knows the right answers; we have to cross the river by feeling the stones, in a process of discovery. Many experiments are required in finding the right answers (which will of course vary, depending on the context). Many conjectures about process modification, imagined by practitioners and thinkers, will prove to be wrong. Business process reengineering in the legal system is hard just as it is in the private sector. In fact, it’s harder because there are no competitors and no measures like profit or stock price.

Computer technology can help in improving the workings of courts, as it does with all manner of service-sector organisations. The first part of this journey is something that has been seen in numerous firms in India. Enterprise information-technology (IT) systems give control to the leadership about the nature of the de facto front line process. Even if the early systems merely replicate the traditional ways, the rails of the enterprise IT system are the foundation for deeper process transformation.

Consider the scheduling system, which is at the heart of legal-system reform. Judges are like heart surgeons: Their time must be used well. At present, in many courts, a hundred cases go to a judge every day. Computerisation of the existing ways would reduce the pain associated with this blur of activity. However, it is better to create conditions for judges to focus, devote significant time per case, over a shorter span of days, so as to achieve a higher understanding of each case. By avoiding what computer scientists call “thrashing” (where a lot of the time is wasted on context switching from one case to the next), such process changes will deliver higher productivity. Such gains do not flow from computerisation that replicates the existing ways.

In the legal system, we tend to notice the Supreme Court and the high courts. But in terms of the number of transactions and the number of cases, the lower judiciary looms large. For these, the Constitution of India gives management powers to high courts. It is the high courts that have to find the leadership and management qualities to improve themselves and the courts under their superintendence.

We are at an important milestone in India today, where the High Court of Kerala has begun the “24x7 ON Court”, a beginning for process transformation in its district courts. Wisdom in change management involves “learning to walk before you can run”, so the changes have begun with one case type (cheque bouncing) at one special court (in Kollam) for newly initiated cases only. At first this will involve stabilising a new software system. In time, it can broaden out to more case types and more locations. Along the way, we may hope for deeper process transformation over many years through the journey of political economy, consultation, and scientific research.

The Kerala court’s leadership has adopted and reused building blocks of open-source software. When the code is available to inspect, this reduces fears about what government software actually does. The open source development process harnesses the energy of the broad community in debate, criticism, and engineering.

Another dimension of a new level of openness, in the Kerala initiatives, is some kinds of API (application programming interface) access. As an example, a bank or a law firm will be able to build enterprise software, which plugs into these APIs, thus reducing labour intensity in the Indian legal fraternity. Everything available through constitutional principles, to a person physically at a traditional court, needs to eventually come out through APIs.

These initiatives in Kerala legal-system reform required a diverse array of capabilities: The leadership and management of the High Court of Kerala, detailed studies of the existing ground reality and design of improved processes and software, open source development backed by philanthropy, resourcing for the High Court of Kerala by the Government of Kerala, etc. It is to the credit of the leadership of the High Court of Kerala that they were able to bring together all these capabilities for the process of change.

The ground realities of different states of India, and of different countries of the world, are all different. Each place will require its own energy for the process of political economy, consultation, and research, in order to go through its own journey of discovery. The open source software that has been released as part of the Kerala launch can be a useful foundation for some of this work, elsewhere in India and elsewhere in the world.

How will all this work in steady state? The methods adopted by eGovernments Foundation in the context of their “Digit” and “iFix” software systems are a useful role model. In their approach, the software is built in the public domain through an open source process with philanthropic funding. Private vendors are contracted by a high court in order to do managed operations using this software, with contracts that emphasise operations and a certain pace of (open source) software development that reflect the local process of discovery. In the short term, the barrier to these arrangements is the extent of capabilities in government contracting at high courts. In the future, these arrangements can morph into a long-standing objective of thinkers in Indian legal-system reform, to separate the administrative aspects from the judicial functions in Indian courts.

The writer is a researcher at XKDR Forum